Wednesday, January 14, 2015

House Republicans voted Wednesday to fund the Department of Homeland Security, but with the requirement that millions of undocumented young people, parents and others be put back at risk of deportation.

The DHS funding bill was the opening shot in what is likely to be a contentious weekslong fight over how to deal with appropriations for the agency before its funding runs out at the end of February. For now, Republicans and Democrats have drawn lines in the sand: Most GOP House members said they would not vote to fund DHS without measures to end many of President Barack Obama's immigration policies, while Democrats and the president have vowed to oppose anything that includes those amendments.

But the vote also showed a schism in the House Republicans -- this time from moderates rather than the usual revolts by immigration hardliners. Those moderates nearly derailed an amendment to end the Deferred Action for Childhood Arrivals policy, or DACA, which helps undocumented immigrants who came to the U.S. as children. Twenty-six House Republicans joined with Democrats to oppose that amendment, which narrowly passed in a 218-209 vote.

The vote on the full bill was 236-191. Ten Republicans opposed final passage, and two Democrats split with their party to support it.

"We do not take this action lightly, but simply, there is no alternative," House Speaker John Boehner (R-Ohio) said in a floor speech just before the vote. "It's not a dispute between the parties or even the branches of our government. This executive overreach is an affront to the rule of law and to the Constitution itself."

Thursday, December 18, 2014

This post is not related to any immigration matter, but I do a fair amount of criminal appellate work as a panel attorney in the First, Second, and Sixth District. I accept court appointment for indigent clients in their direct appeal. I recently received a favorable decision in one of my cases, People v. Foster a case out of Alameda County where a young black male was convicted of attempted robbery of a local convenience store.

The decision was actually written up in the San Francisco Chronicle. Here is the link.

Saturday, November 8, 2014

Last Tuesday, November 4, 2014, California Voters approved Proposition 47, which brings changes to California criminal law and procedure that will affect thousands of immigrants facing deportation due to pending and prior criminal cases.

The “Safe Neighborhood and Schools Act,” known as “Prop 47,” reduces certain felony and “wobbler” offenses for simple drug possession to straight misdemeanors, reduces many theft and burglary-related wobblers to straight misdemeanors and retroactively allows most people convicted of felonies under prior law to seek reduction of their convictions to misdemeanors if their crimes would not have been felonies if committed after November 5, 2014, the law’s effective date.

Under the new Prop 47 statute, aliens who have are being prosecuted for deportable felonies and wobblers now may be able to avoid convictions that would otherwise render them ineligible for relief from removal and those who have already been convicted may possibly reduce their convictions to misdemeanors and obtain relief from orders of deportation and removal.

As of the effective date of Prop 47, November 5, 2014, a new crime of “shoplifting” is now defined as entering a commercial establishment during business hours with the intent to steal items valued at $950 or less. Any such crime can no longer be charged as “theft” or “commercial burglary.”

This change in California criminal law is extremely important to anyone facing deportation or removal proceedings, since previously, District Attorneys across the state have been charging even “petty theft” crimes as “burglaries” and “theft,” creating the danger of deportation proceedings and possibly an “aggravated felony” with no relief if the sentence was one year or longer in jail.

Prop 47 also makes forgery of checks for “Non-Sufficient Funds”, “grand theft” and receiving stolen property all misdemeanors, unless the value of the checks or property involved exceeded $950.00.

Certain drug crimes will also receive more favorable treatment as “misdemeanors” under Prop 47. Simple possession controlled substances, as well as simple possession of concentrated cannabis or “hashish” are now misdemeanors. “Simple possession” generally means the drug was possessed for personal use and not for sale or trafficking to others.

These changes are enormously important, as many “possession” charges could have been classified as “felonies” under California law and considered “aggravated felonies” under the Immigration and Nationality Act, making a convicted immigrant ineligible for relief from removal.

The changes in the law, under Prop 47, apply to most defendants, except those previously convicted of certain sexually violent offenses, child molestation offenses, cases of elder abuse and homicide.

The provision of Prop 47 having perhaps the most immediate impact on deportation cases is the new California Penal Code section 1170.18, which permits a person previously convicted and sentenced to a felony that is now a misdemeanor to petition for resentencing under the new misdemeanor provisions. The sentencing court should resentence the petitioner in these cases, unless the person is considered an “unreasonable risk” to commit one of an enumerated list of certain violent crimes in the future. Under Prop 47, a post-conviction redesignation of a felony to a misdemeanor is valid for “all purposes,” including deportation treatment.

Aliens who have been ordered deported, are facing possible deportation due to previous convictions, or who are facing pending criminal charges are all impacted by this legislation. Any immigrant fitting in these categories should immediately consult with an immigration attorney to ascertain whether their criminal matter qualifies for relief under Prop 47.

Tuesday, November 4, 2014

A San Francisco area woman was sentenced to more than 16 years in prison for running what prosecutors said was a sham university that served as a front for an immigration scam.

Susan Xiao-Ping Su, founder and president of the phony Tri-Valley University, was accused of charging foreigners tuition and other payments for visa-related documents that allowed them to live in the U.S. while she purported that they were here legally to study. She made more than $5.6 million and used the money to buy commercial real estate, a Mercedes Benz and multiple homes, including one at a golf club, federal prosecutors said Monday.

U.S. District Court Judge Jon S. Tigar sentenced Su, 44, on Friday after she was convicted in March of visa fraud and other charges. She was also ordered to forfeit $5.6 million and pay more than $900,000 in restitution, prosecutors said.

"Student visas are intended to give people from around the world a chance to come to this country to enrich themselves with the vast learning opportunities available here," Tatum King, acting special agent in charge for Homeland Security Investigations, San Francisco, said in a statement. "But in this case, the defendant was interested in a different kind of enrichment, her own."

The Tri-Valley case is not unique in the San Francisco area. Jerry Wang, the chief executive officer of Herguan University and the University of East-West Medicine, is also facing visa fraud charges in connection with what authorities say is a similar scheme. He has pleaded not guilty and is scheduled to go on trial next month.

In the Tri-Valley case, employees testified that the school had no graduation or admission requirements, and that Su instructed her staff to fabricate transcripts and other documents.

The school described itself as a "Christian higher education institution" that provided higher education in engineering, business and ministry, according to court documents.

Monday, October 6, 2014

In Torres-Valdivias v. Holder, No. 11-70532, 2014 WL 4377469 (9th Cir. Sept. 5, 2014), the three-judge panel unanimously held that the heightened discretionary requirements adopted by the Attorney General in Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), were properly applied by the Board in the context of applications for adjustment of status under section 245 of the Act.

In Matter of Jean, the A.G. established a presumption that discretion should not be favorably exercised on behalf of an applicant for asylum and adjustment of status under section 209 of the Act who had been convicted of “violent or dangerous crimes,” except in compelling circumstances, such as where removal would cause exceptional and extremely unusual hardship or where there are national security and foreign policy considerations in play. That heightened standard was subsequently extended to cases involving waivers under section 212(h) of the Act by regulation, see 8 C.F.R. § 1212.7(d), and the Board panel in Torres-Valdivias extended it to an adjustment of status application under section 245(i) of the Act.

The Ninth Circuit indicated that it would not extend Chevron deference to the Board’s decision. The court reasoned that the Board was altering the standard set forth in Matter of Arai, 13 I&N Dec. 494 (BIA 1970), in holding that Matter of Jean applied in the section 245(i) context. Matter of Arai also involved an application for adjustment of status under section 245 of the Act. The court noted that Chevron would not apply to an unpublished decision that is not directly controlled by a published decision interpreting the same statute. Noting that an agency “may not . . . depart from a prior policy sub silentio,” the court observed that the Board did not publish its decision or acknowledge Matter of Arai in its unpublished order.

Nevertheless, the court concluded that “the BIA’s decisions in this case are sufficient to satisfy its obligation not to act in an arbitrary or capricious manner.” In this regard, the Ninth Circuit noted that the Board had “adopted and affirmed” the Immigration Judge’s decision which in turn had expressly found that Matter of Jean, had altered the Matter of Arai approach in cases where a violent or dangerous crime was involved.

Monday, September 8, 2014

Recently, US District Court Judge Yvonne Gonzalez Rogers granted a motion for a preliminary injunction in Preap v. Holder, a class action lawsuit in which the Asian Law Caucus and the American Civil Liberties Union of Northern California challenged the ICE's practice in California of detaining certain immigrants without bond, often for many months, while they face deportation proceedings.

Judge Gonzalez determined that by refusing these detainees bond hearings at which they can demonstrate their fitness for release because they are neither a flight risk nor a public safety risk, the government was effectively tearing immigrants away from their families, their communities, and their livelihoods and compromising their access to representation. Many immigrants caught in the mandatory detention dragnet are longtime residents of the United States who have rehabilitated themselves, raised families and they will now have the opportunity to make an individualized case against their detention.

This court challenge seeks to clarify that the Mandatory Detention provisions of INA section 236 apply only "upon release," meaning if a Respondent is taken directly out of state custody, such as jail or prison, into federal immigration detention, they will be subject to the restriction. However, if an alien is picked up later, sometimes years after the fact, an earlier conviction that falls within the category for mandatory detention subjects that person to be detained for the duration of their immigration proceedings, without an opportunity to seek a bond is erroneous and an incorrect application of the statute.

Wednesday, June 18, 2014

Susan Su, age 43, founder and former president of Tri-Valley University of Pleasanton, will be formerly sentenced on June 20, 2014, on the 31 counts ranging from conspiracy to commit visa fraud to money laundering to alien harboring. Su was found guilty after a jury trial in federal court before the Honorable Jon Tigar.

Su was found guilty of operating a so-called "visa mills," related to a multi-million dollar scheme to illegally provide immigration status to foreign nationals.
Tri-Valley University, which catered primarily to online students, was a bogus, unaccredited venture designed to rake in millions of dollars from foreigners who sought to obtain student visas so they could remain in the United States.

Su was found to have defrauded the Tri-Valley students out of about $5.5 million in less than two years, using the money to buy commercial properties in Pleasanton that served as the university's offices as well as a mansion at Ruby Hill Golf Club and a Mercedes-Benz for herself.

Su falsified documents and lied to investigators and immigration officials about how ﻿students were affiliated with the school, which lacked instructors or appropriate course material. Federal investigators found more than 550 students enrolled at the Alameda County university were registered as living at the same address, a two-bedroom apartment in Sunnyvale.